Shapiro v. Thompson/Dissent Harlan

by John Marshall Harlan II

Mr. Justice HARLAN, dissenting.

The Court today holds unconstitutional Connecticut, Pennsylvania, and District of Columbia statutes which restrict certain kinds of welfare benefits to persons who have lived within the jurisdiction for at least one year immediately preceding their applications. The Court has accomplished this result by an expansion of the comparatively new constitutional doctrine that some state statutes will be deemed to deny equal protection of the laws unless justified by a 'compelling' governmental interest, and by holding that the Fifth Amendment's Due Process Clause imposes a similar limitation on federal enactments. Having decided that the 'compelling interest' principle is applicable, the Court then finds that the governmental interests here asserted are either wholly impermissible or are not 'compelling.' For reasons which follow, I disagree both with the Court's result and with its reasoning.

These three cases present two separate but related questions for decision. The first, arising from the District of Columbia appeal, is whether Congress may condition the right to receive Aid to Families with Dependent Children (AFDC) and aid to the permanently and totally disabled in the District of Columbia upon the recipient's having resided in the District for the preceding year. ^[1] The second, presented in the Pennsylvania and Connecticut appeals, is whether a State may, with the approval of Congress, impose the same conditions with respect to eligibility for AFDC assistance. ^[2] In each instance, the welfare residence requirements are alleged to be unconstitutional on two grounds: first, because they impose an undue burden upon the constitutional right of welfare applicants to travel interstate; second, because they deny to persons who have recently moved interstate and would otherwise be eligible for welfare assistance the equal protection of the laws assured by the Fourteenth Amendment (in the state cases) or the analogous protection afforded by the Fifth Amendment (in the District of Columbia case). Since the Court basically relies upon the equal protection ground, I shall discuss it first.

In upholding the equal protection argument, ^[3] the Court has applied an equal protection doctrine of relatively recent vintage: the rule that statutory classifications which either are based upon certain 'suspect' criteria or affect 'fundamental rights' will be held to deny equal protection unless justified by a 'compelling' governmental interest. See ante, at 627, 634, 638.

The 'compelling interest' doctrine, which today is articulated more explicitly than ever before, constitutes an increasingly significant exception to the longestablished rule that a statute does not deny equal protection if it is rationally related to a legitimate governmental objective. ^[4] The 'compelling interest' doctrine has two branches. The branch which requires that classifications based upon 'suspect' criteria be supported by a compelling interest apparently had its genesis in cases involving racial classifications, which have, at least since Korematsu v. United States, 323 U.S. 214, 216, 65 S.Ct. 193, 194, 89 L.Ed. 194 (1944), been regarded as inherently 'suspect.' ^[5] The criterion of 'wealth' apparently was added to the list of 'suspects' as an alternative justification for the rationale in Harper v. Virginia Bd. of Elec. tions, 383 U.S. 663, 668, 86 S.Ct. 1079, 1082, 16 L.Ed.2d 169 (1966), in which Virginia's poll tax was struck down. The criterion of political allegiance may have been added in Williams v. Rhodes, 393 U.S. 23, 89 S.Ct. 5, 21 L.Ed.2d 24 (1968). ^[6] Today the list apparently has been further enlarged to include classifications based upon recent interstate movement, and perhaps those based upon the exercise of any constitutional right, for the Court states, ante, at 634:

'The waiting-period provision denies welfare benefits to otherwise eligible applicants solely because they have recently moved into the jurisdiction. But in moving * * * appellees were exercising a constitutional right, and any classification which serves to penalize the exercise of that right, unless shown to be necessary to promote a compelling governmental interest, is unconstitutional.' ^[7]

I think that this branch of the 'compelling interest' doctrine is sound when applied to racial classifications, for historically the Equal Protection Clause was largely a product of the desire to eradicate legal distinctions founded upon race. However, I believe that the more recent extensions have been unwise. For the reasons stated in my dissenting opinion in Harper v. Virginia Bd. of Elections, supra, at 680, 683-686, 86 S.Ct. at 1088, 1090-1092, I do not consider wealth a 'suspect' statutory criterion. And when, as in Williams v. Rhodes, supra, and the present case, a classification is based upon the exercise of rights guaranteed against state infringement by the Federal Constitution, then there is no need for any resort to the Equal Protection Clause; in such instances, this Court may properly and straightforwardly invalidate any undue burden upon those rights under the Fourteenth Amendment's Due Process Clause. See, e.g., my separate opinion in Williams v. Rhodes, supra, at 41, 89 S.Ct. at 15.

The second branch of the 'compelling interest' principle is even more troublesome. For it has been held that a statutory classification is subject to the 'compelling interest' test if the result of the classification may be to affect a 'fundamental right,' regardless of the basis of the classification. This rule was foreshadowed in Skinner v. Oklahoma, 316 U.S. 535, 541, 62 S.Ct. 1110, 1113, 86 L.Ed. 1655 (1942), in which an Oklahoma statute providing for compulsory sterilization of 'habitual criminals' was held subject to 'strict scrutiny' mainly because it affected 'one of the basic civil rights.' After a long hiatus, the principle re-emerged in Reynolds v. Sims, 377 U.S. 533, 561-562, 84 S.Ct. 1362, 1381, 12 L.Ed.2d 506 (1964), in which state apportionment statutes were subjected to an unusually stringent test because 'any alleged infringement of the right of citizens to vote must be carefully and meticulously scrutinized.' Id., at 562, 84 S.Ct. at 1381. The rule appeared again in Carrington v. Rash, 380 U.S. 89, 96, 85 S.Ct. 775, 780, 13 L.Ed.2d 675 (1965), in which, as I now see that case, ^[8] the Court applied an abnormally severe equal protection standard to a Texas statute denying certain servicemen the right to vote, without indicating that the statutory distinction between servicemen and civilians was generally 'suspect.' This branch of the doctrine was also an alternate ground in Harper v. Virginia Bd. of Elections, supra, see 383 U.S., at 670, 86 S.Ct., at 1083 and apparently was a basis of the holding in Williams v. Rhodes, supra. ^[9] It has reappeared today in the Court's cryptic suggestion, ante, at 627, that the 'compelling interest' test is applicable merely because the result of the classification may be to deny the appellees 'food, shelter, and other necessities of life,' as well as in the Court's statement, ante, at 638, that '(s)ince the classification here touches on the fundamental right of interstate movement, its constitutionality must be judged by the stricter standard of whether it promotes a compelling state interest.' ^[10]

I think this branch of the 'compelling interest' doctrine particularly unfortunate and unnecessary. It is unfortunate because it creates an exception which threatens to swallow the standard equal protection rule. Virtually every state statute affects important rights. This Court has repeatedly held, for example, that the traditional equal protection standard is applicable to statutory classifications affecting such fundamental matters as the right to pursue a particular occupation, ^[11] the right to receive greater or smaller wages ^[12] or to work more or less hours, ^[13] and the right to inherit property. ^[14] Rights such as these are in principle indistinguishable from those involved here, and to extend the 'compelling interest' rule to all cases in which such rights are affected would go far toward making this Court a 'super-legislature.' This branch of the doctrine is also unnecessary. When the right affected is one assured by the Federal Constitution, any infringement can be dealt with under the Due Process Clause. But when a statute affects only matters not mentioned in the Federal Constitution and is not arbitrary or irrational, I must reiterate that I know of nothing which entitles this Court to pick out particular human activities, characterize them as 'fundamental,' and give them added protection under an unusually stringent equal protection test.

I shall consider in the next section whether welfare residence requirements deny due process by unduly burdening the right of interstate travel. If the issue is regarded purely as one of equal protection, then, for the reasons just set forth, this nonracial classification should be judged by ordinary equal protection standards. The applicable criteria are familiar and well established. A legislative measure will be found to deny equal protection only if 'it is without any reasonable basis, and therefore is purely arbitrary.' Lindsley v. Natural Carbonic Gas Co., 220 U.S. 61, 78, 31 S.Ct. 337, 340, 55 L.Ed. 369 (1911). It is not enough that the measure results incidentally 'in some inequality,' or that it is not drawn 'with mathematical nicety,' ibid.; the statutory classification must instead cause 'different treatments * * * so disparate, relative to the difference in classification, as to be wholly arbitrary.' Walters v. City of St. Louis, 347 U.S. 231, 237, 74 S.Ct. 505, 509, 98 L.Ed. 660 (1954). Similarly, this Court has stated that where, as here, the issue concerns the authority of Congress to withhold 'a noncontractual benefit under a social welfare program * * *, the Due Process Clause (of the Fifth Amendment) can be thought to interpose a bar only if the statute manifests a patently arbitrary classification, utterly lacking i rational justification.' Flemming v. Nestor, 363 U.S. 603, 611, 80 S.Ct. 1367, 1372, 1373, 4 L.Ed.2d 1435 (1960).

For reasons hereafter set forth, see infra, at 672-677, a legislature might rationally find that the imposition of a welfare residence requirement would aid in the accomplishment of at least four valid governmental objectives. It might also find that residence requirements have advantages not shared by other methods of achieving the same goals. In light of this undeniable relation of residence requirements to valid legislative aims, it cannot be said that the requirements are 'arbitrary' or 'lacking in rational justification.' Hence, I can find no objection to these residence requirements under the Equal Protection Clause of the Fourteenth Amendment or under the analogous standard embodied in the Due Process Clause of the Fifth Amendment.

The next issue, which I think requires fuller analysis than that deemed necessary by the Court under its equal protection rationale, is whether a one-year welfare residence requirement amounts to an undue burden upon the right of interstate travel. Four considerations are relevant: First, what is the constitutional source and nature of the right to travel which is relied upon? Second, what is the extent of the interference with that right? Third, what governmental interests are served by welfare residence requirements? Fourth, how should the balance of the competing considerations be struck?

The initial problem is to identify the source of the right to travel asserted by the appellees. Congress enacted the welfare residence requirement in the District of Columbia, so the right to travel which is invoked in that case must be enforceable against congressional action. The residence requirements challenged in the Pennsylvania and Connecticut appeals were authorized by Congress in 42 U.S.C. § 602(b), so the right to travel relied upon in those cases must be enforceable against the States even though they have acted with congressional approval.

In my view, it is playing ducks and drakes with the statute to argue, as the Court does, ante, at 639-641, that Congress did not mean to approve these state residence requirements. In 42 U.S.C. § 602(b), quoted more fully, ante, at 638-639, Congress directed that:

'(t)he Secretary shall approve any (state assistance) plan which fulfills the conditions specified in subsection (a) of this section, except that he shall not approve any plan which imposes as a condition of eligibility for (AFDC aid) a residence requirement (equal to or greater than one year).'

I think that by any fair reading this section must be regarded as conferring congressional approval upon any plan containing a residence requirement of up to one year.

If any reinforcement is needed for taking this statutory language at face value, the overall scheme of the AFDC program and the context in which it was enacted suggest strong reasons why Congress would have wished to approve limited state residence requirements. Congress determined to enlist state assistance in financing the AFDC program, and to administer the program primarily through the States. A previous Congress had already enacted a one-year residence requirement with respect to aid for dependent children in the District of Columbia. ^[15] In these circumstances, I think it only sensible to conclude that in allowing the States to impose limited residence conditions despite their possible impact on persons who wished to move interstate, ^[16] Congress was motivated by a desire to encourage state participation in the AFDC program, ^[17] as well as by a feeling that the States should at least be permitted to impose residence requirements as strict as that already authorized for the District of Columbia. Congress therefore had a genuine federal purpose in allowing the States to use residence tests. And I fully agree with THE CHIEF JUSTICE that this purpose would render § 602(b) a permissible exercise of Congress' power under the Commerce Clause, unless Congress were prohibited from acting by another provision of the Constitution.

Nor do I find it credible that Congress intended to refrain from expressing approval of state residence requirements because of doubts about their constitutionality or their compatibility with the Act's beneficent purposes. With respect to constitutionality, a similar residence requirement was already in effect for the District of Columbia, and the burdens upon travel which might be caused by such requirements must, even in 1935, have been regarded as within the competence of Congress under its commerce power. If Congress had thought residence requirements entirely incompatible with the aims of the Act, it could simply have provided that state assistance plans containing such requirements should not be approved at all, rather than having limited approval to plans containing residence requirements of less than one year. Moreover, when Congress in 1944 revised the AFDC program in the District of Columbia to conform with the standards of the Act, it chose to condition eligibility upon one year's residence, ^[18] thus strongly indicating that it doubted neither the constitutionality of such a provision nor its consistency with the Act's purposes. ^[19]

Opinions of this Court and of individual Justices have suggested four provisions of the Constitution as possible sources of a right to travel enforceable against the federal or state governments: the Commerce Clause; ^[20] the Privileges and Immunities Clause of Art. IV, § 2; ^[21] the Privileges and Immunities Clause of the Fourteenth Amendment; ^[22] and the Due Process Clause of the Fifth Amendment. ^[23] The Commerce Clause can be of no assistance to these appellees, since that clause grants plenary power to Congress, ^[24] and Congress either enacted or approved all of the residence requirements here challenged. The Privileges and Immunities Clause of Art. IV, § 2, ^[25] is irrelevant, for it appears settled that this clause neither limits federal power nor prevents a State from distinguishing among its own citizens, but simply 'prevents a state from discriminating against citizens of other states in favor of its own.' Hague v. CIO, 307 U.S. 496, 511, 59 S.Ct. 954, 962, 83 L.Ed. 1423 (1939) (opinion of Roberts, J.); see Slaughter-House Cases, 16 Wall. 36, 77, 21 L.Ed. 394 (1873). Since Congress enacted the District of Columbia residence statute, and since the Pennsylvania and Connecticut appellees were residents and therefore citizens of those States when they sought welfare, the clause can have no application in any of these cases.

The Privileges and Immunities Clause of the Fourteenth Amendment provides that: 'No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States.' It is evident that this clause cannot be applicable in the District of Columbia appeal, since it is limited in terms to instances of state action. In the Pennsylvania and Connecticut cases, the respective States did impose and enforce the residence requirements. However, Congress approved these requirements in 42 U.S.C. § 602(b). The fact of congressional approval, together with this Court's past statements about the nature of the Fourteenth Amendment Privileges and Immunities Clause, leads me to believe that the clause affords no additional help to these appellees, and that the decisive issue is whether Congress itself may impose such requirements. The view of the Privileges and Immunities Clause which has most often been adopted by the Court and by individual Justices is that it extends only to those 'privileges and immunities' which 'arise or grow out of the relationship of United States citizens to the national government.' Hague v. CIO, 307 U.S. 496, 520, 59 S.Ct. 954, 966 (1939) (opinion of Stone, J.). ^[26] On the authority of Crandall v. Nevada, 6 Wall. 35, 18 L.Ed. 744 (1868), those privileges and immunities have repeatedly been said to include the right to travel from State to State, ^[27] presumably for the reason assigned in Crandall: that state restrictions on travel might interfere with intercourse between the Federal Government and its citizens. ^[28] This kind of objection to state welfare residence requirements would seem necessarily to vanish in the face of congressional authorization, for except in those instances when its authority is limited by a constitutional provision binding upon it (as the Fourteenth Amendment is not), Congress has full power to define the relationship between citizens and the Federal Government.

Some Justices, notably the dissenters in the Slaughter-House Cases, 16 Wall. 36, 83, 111, 124 (1873) (Field, Bradley, and Swayne, JJ., dissenting), and the concurring Justices in Edwards v. California, 314 U.S. 160, 177, 181, 62 S.Ct. 164, 168, 170 (1941) (Douglas and Jackson, JJ., concurring), have gone further and intimated that the Fourteenth Amendment right to travel interstate is a concomitant of federal citizenship which stems from sources even more basic than the need to protect citizens in their relations with the Federal Government. The Sl ughter-House dissenters suggested that the privileges and immunities of national citizenship, including freedom to travel, were those natural rights 'which of right belong to the citizens of all free governments,' 16 Wall., at 98 (Field, J.). However, since such rights are 'the rights of citizens of any free government,' id., at 114 (Bradley, J.), it would appear that they must be immune from national as well as state abridgement. To the extent that they may be validly limited by Congress, there would seem to be no reason why they may not be similarly abridged by States acting with congressional approval.

The concurring Justices in Edwards laid emphasis not upon natural rights but upon a generalized concern for the functioning of the federal system, stressing that to allow a State to curtail 'the rights of national citizenship would be to contravene every conception of national unity,' 314 U.S., at 181, 62 S.Ct., at 170 (Douglas, J.), and that '(i)f national citizenship means less than (the right to move interstate) it means nothing.' Id., at 183, 62 S.Ct., at 171 (Jackson, J.). However, even under this rationale the clause would appear to oppose no obstacle to congressional delineation of the rights of national citizenship, insofar as Congress may do so without infringing other provisions of the Constitution. Mr. Justice Jackson explicitly recognized in Edwards that: 'The right of the citizen to migrate from state to state * * * (is) subject to all constitutional limitations imposed by the federal government,' id., at 184, 62 S.Ct., at 172. And nothing in the nature of federalism would seem to prevent Congress from authorizing the States to do what Congress might validly do itself. Indeed, this Court has held, for example, that Congress may empower the States to undertake regulations of commerce which would otherwise be prohibited by the negative implications of the Commerce Clause. See Prudential Ins. Co. v. Benjamin, 328 U.S. 408, 66 S.Ct. 1142, 90 L.Ed. 1342 (1946). Hence, as has already been suggested, the decisive question is whether Congress may legitimately enact welfare residence requirements, and the Fourteenth Amendment Privileges and Immunities Clause adds no extra force to the appellees' attack on the requirements.

The last possible source of a right to travel is one which does operate against the Federal Government: the Due Process Clause of the Fifth Amendment. ^[29] It is now settled that freedom to travel is an element of the 'liberty' secured by that clause. In Kent v. Dulles, 357 U.S. 116, 125-126, 78 S.Ct. 1113, 1118, 2 L.Ed.2d 1204 (1958), the Court said:

'The right to travel is a part of the 'liberty' of which the citizen cannot be deprived without due process of law under the Fifth Amendment. * * * Freedom of movement across frontiers * * *, and inside frontiers as well, was a part of our heritage. * * *'

The Court echoed these remarks in Aptheker v. Secretary of State, 378 U.S. 500, 505-506, 84 S.Ct. 1659, 1663, 12 L.Ed.2d 992 (1964), and added:

'Since this case involves a personal liberty protected by the Bill of Rights, we believe that the proper approach to legislation curtailing that liberty must be that adopted by this Court in NAACP v. Button, 371 U.S. 415, 83 S.Ct. 328, 9 L.Ed.2d 405, and Thornhill v. Alabama, 310 U.S. 88, 60 S.Ct. 736, 84 L.Ed. 1093. * * * (S)ince freedon of travel is a constitutional liberty closely related to rights of free speech and association, we believe that appellants * * * should not be required to assume the burden of demonstrating that Congress could not have written a statute constitutionally prohibiting their travel.' Id., at 516-517, 84 S.Ct., at 1669.

However, in Zemel v. Rusk, 381 U.S. 1, 85 S.Ct. 1271, 14 L.Ed.2d 179 (1965), the First Amendment cast of the Aptheker opinion was explained as having stemmed from the fact that Aptheker was forbidden to travel because of 'expression or association on his part,' id., at 16, 85 S.Ct. at 1280. The Court noted that Zemel was 'not being forced to choose between membership in an organization and freedom to travel,' ibid., and held that the mere circumstance that Zemel's proposed journey to Cuba might be used to collect information of political and social significance was not enough to bring the case within the First Amendment category.

Finally, in United States v. Guest, 383 U.S. 745, 86 S.Ct. 1170, 16 L.Ed.2d 239 (1966), the Court again had occasion to consider the right of interstate travel. Without specifying the source of that right, the Court said:

'The constitutional right to travel from one State to another * * * occupies a position fundamental to the concept of our Federal Union. It is a right that has been firmly established and repeatedly recognized. * * * (The) right finds no explicit mention in the Constitution. The reason, it has been suggested, is that a right so elementary was conceived from the beginning to be a necessary concomitant of the stronger Union the Constitution created. In any event, freedom to travel throughout the United States has long been recognized as a basic right under the Constitution.' Id. at 757-758, 86 S.Ct. at 1178. (Footnotes omitted.)

I therefore conclude that the right to travel interstate is a 'fundamental' right which, for present purposes, should be regarded as having its source in the Due Process Clause of the Fifth Amendment.

The next questions are: (1) To what extent does a one-year residence condition upon welfare eligibility interfere with this right to travel?; and (2) What are the governmental interests supporting such a condition? The consequence of the residence requirements is that persons who contemplate interstate changes of residence, and who believe that they otherwise would qualify for welfare payments, must take into account the fact that such assistance will not be available for a year after arrival. The number or proportion of persons who are actually deterred from changing residence by the existence of these provisions is unknown. If one accepts evidence put forward by the appellees, ^[30] to the effect that there would be only a minuscule increase in the number of welfare applicants were existing residence requirements to be done away with, it follows that the requirements do not deter an appreciable number of persons from moving interstate.

Against this indirect impact on the right to travel must be set the interests of the States, and of Congress with respect to the District of Columbia, in imposing residence conditions. There appear to be four such interests. First, it is evident that a primary concern of Congress and the Pennsylvania and Connecticut Legislatures was to deny welfare benefits to persons who moved into the jurisdiction primarily in order to collect those benefits. ^[31] This seems to me an entirely legitimate objective. A legislature is certainly not obliged to furnish welfare assistance to every inhabitant of the jurisdiction, and it is entirely rational to deny benefits to those who enter primarily in order to receive them, since this will make more funds available for those whom the legislature deems more worthy of subsidy. ^[32]

A second possible purpose of residence requirements is the prevention of fraud. A residence requirement provides an objective and workable means of determining that an applicant intends to remain indefinitely within the jurisdiction. It therefore may aid in eliminating fraudulent collection of benefits by nonresidents and persons already receiving assistance in other States. There can be no doubt that prevention of fraud is a valid legislative goal. Third, the requirement of a fixed period of residence may help in predicting the budgetary amount which will be needed for public assistance in the future. While none of the appellant jurisdictions appears to keep data sufficient to permit the making of detailed budgetary predictions in consequence of the requirement, ^[33] it is probable that in the event of a very large increase or decrease in the number of indigent newcomers the waiting period would give the legislature time to make needed adjustments in the welfare laws. Obviously, this is a proper objective. Fourth, the residence requirements conceivably may have been predicated upon a legislative desire to restrict welfare payments financed in part by state tax funds to persons who have recently made some contribution to the State's economy, through having been employed, having paid taxes, or having spent money in the State. This too would appear to be a legitimate purpose. ^[34]

The next question is the decisive one: whether the governmental interests served by residence requirements outweigh the burden imposed upon the right to travel. In my view, a number of considerations militate in favor of constitutionality. First, as just shown, four separate, legitimate governmental interests are furthered by residence requirements. Second, th impact of the requirements upon the freedom of individuals to travel interstate is indirect and, according to evidence put forward by the appellees themselves, insubstantial. Third, these are not cases in which a State or States, acting alone, have attempted to interfere with the right of citizens to travel, but one in which the States have acted within the terms of a limited authorization by the National Government, and in which Congress itself has laid down a like rule for the District of Columbia. Fourth, the legislatures which enacted these statutes have been fully exposed to the arguments of the appellees as to why these residence requirements are unwise, and have rejected them. This is not, therefore, an instance in which legislatures have acted without mature deliberation.

Fifth, and of longer-range importance, the field of welfare assistance is one in which there is a widely recognized need for fresh solutions and consequently for experimentation. Invalidation of welfare residence requirements might have the unfortunate consequence of discouraging the Federal and State Governments from establishing unusually generous welfare programs in particular areas on an experimental basis, because of fears that the program would cause an influx of persons seeking higher welfare payments. Sixth and finally, a strong presumption of constitutionality attaches to statutes of the types now before us. Congressional enactments come to this Court with an extremely heavy presumption of validity. See, e.g., Brown v. Maryland, 12 Wheat. 419, 436, 6 L.Ed. 678 (1827); Hardware Dealers Mutual Fire Insurance Co. v. Glidden Co., 284 U.S. 151, 158, 52 S.Ct. 69, 71, 76 L.Ed. 214 (1931); United States v. Butler, 297 U.S. 1, 67, 56 S.Ct. 312, 319, 80 L.Ed. 477 (1936); United States v. National Dairy Corp., 372 U.S. 29, 32, 83 S.Ct. 594, 597, 9 L.Ed.2d 561 (1963). A similar presumption of constitutionality attaches to state statutes, particularly when, as here, a State has acted upon a specific authorization from Congress. See, e.g., Powell v. Pennsylvania, 127 U.S. 678, 684 685, 8 S.Ct. 992, 995-996, 32 L.Ed. 253 (1888); United States v. Des Moines Nav. & R. Co., 142 U.S. 510, 544-545, 12 S.Ct. 308, 317 318, 35 L.Ed. 1099 (1892).

I do not consider that the factors which have been urged to outweigh these considerations are sufficient to render unconstitutional these state and federal enactments. It is said, first, that this Court, in the opinions discussed, supra, at 669 671, has acknowledged that the right to travel interstate is a 'fundamental' freedom. Second, it is contended that the governmental objectives mentioned above either are ephemeral or could be accomplished by means which do not impinge as heavily on the right to travel, and hence that the requirements are unconstitutional because they 'sweep unnecessarily broadly and thereby invade the area of protected freedoms.' NAACP v. Alabama, 377 U.S. 288, 307, 84 S.Ct. 1302, 1314, 12 L.Ed.2d 325 (1964). The appellees claim that welfare payments could be denied those who come primarily to collect welfare by means of less restrictive provisions, such as New York's Welfare Abuses Law; ^[35] that fraud could be prevented by investigation of individual applicants or by a much shorter residence period; that budgetary predictability is a remote and speculative goal; and that assurance of investment in the community could be obtained by a shorter residence period or by taking into account prior intervals of residence in the jurisdiction.

Taking all of these competing considerations into account, I believe that the balance definitely favors constitutionality. In reaching tha conclusion, I do not minimize the importance of the right to travel interstate. However, the impact of residence conditions upon that right is indirect and apparently quite insubstantial. On the other hand, the governmental purposes served by the requirements are legitimate and real, and the residence requirements are clearly suited to their accomplishment. To abolish residence requirements might well discourage highly worthwhile experimentation in the welfare field. The statutes come to us clothed with the authority of Congress and attended by a correspondingly heavy presumption of constitutionality. Moreover, although the appellees assert that the same objectives could have been achieved by less restrictive means, this is an area in which the judiciary should be especially slow to fetter the judgment of Congress and of some 46 state legislatures ^[36] in the choice of methods. Residence requirements have advantages, such as administrative simplicity and relative certainty, which are not shared by the alternative solutions proposed by the appellees. In these circumstances, I cannot find that the burden imposed by residence requirements upon ability to travel outweighs the governmental interests in their continued employment. Nor do I believe that the period of residence required to these cases-one year-is so excessively long as to justify a finding of unconstitutionality on that score.

I conclude with the following observations. Today's decision, it seems to me, reflects to an unusual degree the current notion that this Court possesses a peculiar wisdom all its own whose capacity to lead this Nation out of its present troubles is contained only by the limits of judicial ingenuity in contriving new constitutional principles to meet each problem as it arises. For anyone who, like myself, believes that it is an essential function of this Court to maintain the constitutional divisions between state and federal authority and among the three branches of the Federal Government, today's decision is a step in the wrong direction. This resurgence of the expansive view of 'equal protection' carries the seeds of more judicial interference with the state and federal legislative process, much more indeed than does the judicial application of 'due process' according to traditional concepts (see my dissenting opinion in Duncan v. Louisiana, 391 U.S. 145, 171, 88 S.Ct. 1444, 1458, 20 L.Ed.2d 491, 522 (1968)), about which some members of this Court have expressed fears as to its potentialities for setting us judges 'at large.' ^[37] I consider it particularly unfortunate that this judicial roadblock to the powers of Congress in this field should occur at the very threshold of the current discussions regarding the 'federalizing' of these aspects of welfare relief.

Notes

1  Of the District of Columbia appellees, all sought AFDC assistance except appellee Barley, who asked for Aid to the Permanently and Totally Disabled. In 42 U.S.C. § 602(b). Congress has authorized 'States' (including the District of Columbia, see 42 U.S.C. § 1301(a)(1)) to require up to one year's immediately prior residence as a condition of eligibility for AFDC assistance. See n. 15, infra. In 42 U.S.C. §§ 1352(b)(1) and 1382(b)(2), Congress has permitted 'States' to condition disability payments upon the applicant's having resided in the State for up to five of the preceding nine years. However, D.C.Code § 3-203 prescribes a one-year residence requirement for both types of assistance, so the question of the constitutionality of a longer required residence period is not before us.

Appellee Barley also challenged in the District Court the constitutionality of a District of Columbia regulation which provided that time spent in a District of Columbia institution as a public charge did not count as residence for purposes of welfare eligibility. The District Court held that the regulation must fall for the same reasons as the residence statute itself. Since I believe that the District Court erred in striking down the statute, and since the issue of the regulation's constitutionality has been argued in this Court only in passing, I would remand appellee Barley's cause for further consideration of that question.

2  I do not believe that the Pennsylvania appeal presents the additional question of the validity of a residence condition for a purely state-financed and state-authorized public assistance program. The Pennsylvania welfare eligibility provision, Pa. Stat.Ann., Tit. 62, § 432 (1968), states:

'Except as hereinafter otherwise provided * * *, needy persons of the classes d fined in clauses (1) and (2) of this section shall be eligible for assistance:

'(1) Persons for whose assistance Federal financial participation is available to the Commonwealth as * * * aid to families with dependent children, * * * and which assistance is not precluded by other provisions of law.

'(2) Other persons who are citizens of the United States * * *.

'(6) Assistance may be granted only to or in behalf of a person residing in Pennsylvania who (i) has resided therein for at least one year immediately preceding the date of application * * *.'

As I understand it, this statute initially divides Pennsylvania welfare applicants into two classes: (1) persons for whom federal financial assistance is available and not precluded by other provisions of federal law (if state law, including the residence requirement, were intended, the 'Except as hereinafter otherwise provided' proviso at the beginning of the entire section would be surplusage); (2) other persons who are citizens. The residence requirement applies to both classes. However, since all of the Pennsylvania appellees clearly fall into the first or federally assisted class, there is no need to consider whether residence conditions may constitutionally be imposed with respect to the second or purely state-assisted class.

3  In characterizing this argument as one based on an alleged denial of equal protection of the laws, I do not mean to disregard the fact that this contention is applicable in the District of Columbia only through the terms of the Due Process Clause of the Fifth Amendment. Nor do I mean to suggest that these two constitutional phrases are 'always interchangeable,' see Bolling v. Sharpe, 347 U.S. 497, 499, 74 S.Ct. 693, 694, 98 L.Ed. 884 (1954). In the circumstances of this case, I do not believe myself obliged to explore whether there may be any differences in the scope of the protection afforded by the two provisions.

4  See, e.g., New York Rapid Transit Corp. v. City of New York, 303 U.S. 573, 578, 58 S.Ct. 721, 724, 82 L.Ed. 1024 (1938). See also infra, at 662.

5  See Loving v. Virginia, 388 U.S. 1, 11, 87 S.Ct. 1817, 1823, 18 L.Ed.2d 1010 (1967); cf. Bolling v. Sharpe, 347 U.S. 497, 499, 74 S.Ct. 693, 694 (1954). See also Hirabayashi v. United States, 320 U.S. 81, 00, 63 S.Ct. 1375, 1385, 87 L.Ed. 1774 (1943); Yick Wo v. Hopkins, 118 U.S. 356, 6 S.Ct. 1064, 30 L.Ed. 220 (1886).

6  See n. 9, infra.

7  See n. 9, infra.

8  I recognize that in my dissenting opinion in Harper v. Virginia Bd. of Elections, supra, at 683, 86 S.Ct., at 1090. I characterized the test applied in Carrington as 'the traditional equal protection standard.' I am now satisfied that this was too generous a reading of the Court's opinion.

9  Analysis is complicated when the statutory lassification is grounded upon the exercise of a 'fundamental' right. For then the statute may come within the first branch of the 'compelling interest' doctrine because exercise of the right is deemed a 'suspect' criterion and also within the second because the statute is considered to affect the right by deterring its exercise. Williams v. Rhodes, supra, is such a case insofar as the statutes involved both inhibited exercise of the right of political association and drew distinctions based upon the way the right was exercised. The present case is another instance, insofar as welfare residence statutes both deter interstate movement and distinguish among welfare applicants on the basis of such movement. Consequently, I have not attempted to specify the branch of the doctrine upon which these decisions rest.

10  See n. 9, supra.

11  See, e.g., Williamson v. Lee Optical Co., 348 U.S. 483, 75 S.Ct. 461, 99 L.Ed. 563 (1955); Kotch v. Board of River Pilot Com'rs, 330 U.S. 552, 67 S.Ct. 910, 91 L.Ed. 1093 (1947).

12  See, e.g., Bunting v. Oregon, 243 U.S. 426, 37 S.Ct. 435, 61 L.Ed. 830 (1917).

13  See, e.g., Miller v. Wilson, 236 U.S. 373, 35 S.Ct. 342, 59 L.Ed. 628 (1915).

14  See, e.g., Ferry v. Spokane, P. & S.R. Co., 258 U.S. 314, 42 S.Ct. 358, 66 L.Ed. 635 (1922).

15  See 44 Stat. 758, § 1.

16  The arguments for and against welfare residence requirements, including their impact on indigent migrants, were fully aired in congressional committee hearings. See, e.g., Hearings on H.R. 4120 before the House Committee on Ways and Means, 74th Cong., 1st Sess., 831-832, 861-871 (1935); Hearings on S. 1130 before the Senate Committee on Finance, 74th Cong., 1st Sess., 522-540, 643, 656 (1935).

17  I am not at all persuaded by the Court's argument that Congress' sole purpose was to compel "(l)iberality of residence requirement." See ante, at 640. If that was the only objective, it could have been more effectively accomplished by specifying that to qualify for approval under the Act a state assistance plan must contain no residence requirement.

18  See Act to provide aid to dependent children in the District of Columbia § 3, 58 Stat. 277 (1944). In 1962, this Act was repealed and replaced by D.C. Code § 3-203, the provision now being challenged. See 76 Stat. 914.

19  Cf., ante, at 639-641 and nn. 24-25.

20  See, e.g., Edwards v. California, 314 U.S. 160, 62 S.Ct. 164, 86 L.Ed. 119 (1941); the Passenger Cases, 7 How. 283, 12 L.Ed. 702 (1849).

21  See, e.g., Corfield v. Coryell, 6 Fed.Cas. p. 546 (No. 3230) (1825) (Mr. Justice Washington).

22  See, e.g., Edwards v. California, 314 U.S. 160, 177, 181, 62 S.Ct. 164, 168, 170 (1941) (Douglas and Jackson, JJ., concurring); Twining v. New Jersey, 211 U.S. 78, 97, 29 S.Ct. 14, 18, 53 L.Ed. 97 (1908) (dictum).

23  See, e.g., Kent v. Dulles, 357 U.S. 116, 125-127, 78 S.Ct. 1113, 1118, 2 L.Ed.2d 1204 (1958); Aptheker v. Secretary of State, 378 U.S. 500, 505-506, 84 S.Ct. 1659, 1663, 12 L.Ed.2d 992 (1964).

24  See, e.g., Prudential Ins. Co. v. Benjamin, 328 U.S. 408, 423, 66 S.Ct. 1142, 1151, 90 L.Ed. 1342 (1946). See also Maryland v. Wirtz, 392 U.S. 183, 193-199, 88 S.Ct. 2017, 2022-2024, 20 L.Ed.2d 1020 (1968).

25  'The Citizens of each State shall be entitled to all Privileges and Immunities of Citizens in the several States.'

26  See Slaughter-House Cases, 16 Wall. 36, 79 (1873); In re Kemmler, 136 U.S. 436, 448, 10 S.Ct. 930, 934, 34 L.Ed. 519 (1890); McPherson v. Blacker, 146 U.S. 1, 38, 13 S.Ct. 3, 11, 36 L.Ed. 869 (1892); Giozza v. Tiernan, 148 U.S. 657, 661, 13 S.Ct. 721, 723, 37 L.Ed. 599 (1893); Duncan v. Missouri, 152 U.S. 377, 382, 14 S.Ct. 570, 571, 38 L.Ed. 485 (1894); Twining v. New Jersey, 211 U.S. 78, 97-98, 29 S.Ct. 14, 18-19 (1908).

27  See, e.g., Slaughter-House Cases, supra, at 79; Twining v. New Jersey, supra, at 97, 29 S.Ct., at 18.

28  The Crandall Court stressed the 'right' of a citizen to come to the national capital, to have access to federal officials, and to travel to seaports. See 6 Wall., at 44. Of course, Crandall was decided before the enactment of the Fourteenth Amendment.

29  Professor Chafee has suggested that the Due Process Clause of the Fourteenth Amendment may similarly protect the right to travel against state interference. See Z. Chafee, Three Human Rights in the Constitution of 1787, p. 192 (1956). However, that clause surely provides no greater protection against the States than does the Fifth Amendment clause against the Federal Government; so the decisive question still is whether Congress may enact a residence requirement.

30  See Brief for Appellees in No. 33, pp. 49-51 and n. 70; Brief for Appellees in No. 34, p. 24 n. 11; Supplemental Brief for Appellees on Reargument 27-30.

31  For Congress, see, e.g., Problems of Hungry Children in the District of Columbia, Hearings before the Subcommittee on Public Health, Education, Welfare, and Safety of the Senate Committee on the District of Columbia, 85th Cong., 1st Sess. For Connecticut, see Connecticut General Assembly, 1965 Feb.Spec.Sess., House of Representatives Proceedings, Vol. II, pt. 7, at 3505. For Pennsylvania, see Appendix in No. 34, pp. 96a-98a.

32  There is support for the view that enforcement of residence requirements can significantly reduce welfare costs by denying benefits to those who come solely to collect them. For example, in the course of a long article generally critical of residence requirements, and after a detailed discussion of the available information, Professor Harvith has stated:

'A fair conclusion seems to be that, in at least some states, it is not unreasonable for the legislature to conclude that a useful saving in welfare costs may be obtained by residence tests discouraging those who would enter the state solely because of its welfare programs. In New York, for example, a one per cent saving in welfare costs would amount to several million dollars.' Harvith, The Constitutionality of Residence Tests for General and Categorical Assistance Programs, 54 Calif.L.Rev. 567, 618 (1966). (Footnotes omitted.) See also Helvering v. Davis, 301 U.S. 619, 644, 57 S.Ct. 904, 909, 81 L.Ed. 1307 (1937).

For essentially the same reasons, I would uphold the Connecticut welfare regulations which except from the residence requirement persons who come to Connecticut with a bona fide job offer or with resources sufficient to support them for three months. See 1 Conn. Welfare Manual, c. II, §§ 219.1-219.2 (1966). Such persons are very unlikely to have entered the State primarily in order to receive welfare benefits.

33  For precise prediction to be possible, it would appear that a residence requirement must be combined with a procedure for ascertaining the number of indigent persons who enter the jurisdiction and the proportion of those persons who will remain indigent during the residence period.

34  I do not mean to imply that each of the above purposes necessarily was sought by each of the legislatures that adopted durational residence requirements. In Connecticut, for example, the welfare budget is apparently open-ended, suggesting that this State is not seriously concerned with the need for more accurate budgetary estimates.

35  That law, N.Y.Soc.Welfare Law, McKinney's Consol. Laws, c. 55, § 139-a, requires public welfare officials to conduct a detailed investigation in order to ascertain whether a welfare 'applicant came into the state for the purpose of receiving public assistance or care and accordingly is undeserving of and ineligible for assistance * * *.'

36  The figure may be variously calculated. There was testimony before the District Court in the Pennsylvania case that 46 States had some form of residence requirement for welfare assistance. Appendix in No. 34, pp. 92a-93a. It was stipulated in the Connecticut case that in 1965, 40 States had residence requirements for aid to dependent children. Appendix to Appellant's Brief in No. 9, p. 45a. See also, ante, at 639-640 and n. 22.

37  Cf. Harper v. Virginia Bd. of Elections, 383 U.S. 663, 670, 675-680, 86 S.Ct. 1079, 1083, 1086-1088, 16 L.Ed.2d 169 (Black, J., dissenting).